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"“Governments make up the rules depending on what is in their interests.” "

Hadayt Nazami

Toronto immigration lawyer

If Edward Snowden ever re-emerges, think at least this much of him — that there’s some corner of a Moscow airport that is forever Russia.

Granted, this is not what Russian President Vladimir Putin would have you believe.

Putin insists that an international transit area in the arrivals section of the Sheremetyevo Airport near Moscow is not, technically, a part of Russia’s national territory. Therefore, he says, his government cannot comply with U.S. efforts to bring Snowden, the now notorious whistleblower and accused felon, back to the United States for trial.

“That’s absolutely ridiculous,” says Errol Mendes, a human rights lawyer at the University of Ottawa. “Putin’s position is untenable.”

Maybe so, but the Putin doctrine is far from rare.

‘Disown’ territory

Governments around the world routinely do exactly what the Russian leader is doing. They “disown” certain parts of their national territory in order to avoid shouldering international obligations that they would rather forgo.

France has done it. Britain has done it. The United States does it. And Australia? Well, let’s just say, “Fair dinkum, mate,” because Australia is quite possibly world champion at the practice.

“Governments make up the rules depending on what is in their interests,” says Toronto immigration lawyer Hadayt Nazami.

Most of these made-up rules are designed to frustrate would-be asylum seekers.

In Snowden’s case, however, Putin maintains the American is not in “Russia” in order to thwart efforts by U.S. authorities to get their hands on the 30-year-old computer analyst, who has infuriated his government by releasing National Security Agency documents about the monitoring of cellphone and Internet use.

Putin’s argument, that the international arrivals area at Sheremetyevo is “extraterritorial,” might well be wrong, but it’s hardly new. Russian officials have long made similar claims about the arrivals hall at the same airport and for the more familiar reason — to avoid granting asylum to unwelcome would-be claimants.

Ten years ago, the English-language Moscow Times reported that, on any given day, between 10 and 50 international castaways could be found at Sheremetyevo, “sleeping on the floor and begging for food.” Russia wouldn’t let them in, and they had nowhere else to go.

According to Mendes, the Russian claim of airport extraterritoriality — like its equivalent in other countries — is “a legal fiction.” It’s convenient, but it isn’t true.

A Canadian government official said much the same thing.

“There is a myth out there that airport transit areas are international no man’s lands,” she said, requesting anonymity because she isn’t a lawyer. “They’re not. At the end of the day, any airport is within the territory of whatever country it’s in.”

Legal manoeuvres

Still, it is not hard to understand why many governments behave otherwise.

Under international law, a potential refugee claimant generally must first gain entry to the national territory in which he or she intends to make a claim. Only then does a raft of internationally recognized rights and protections kick in, ensuring the bid for asylum will be given a fair hearing.

To prevent that from happening, refugee-averse countries simply invoke the Putin solution. They disclaim jurisdiction over parcels of their national territory, thereby leaving the asylum seekers out in the semantic cold.

After all, you cannot claim asylum in France if you do not happen to be standing in “France.”

Sometimes these legalistic manoeuvres can be almost surreal.

According to Mendes, the French government defines a number of Paris hospitals as being beyond the national territory for the purpose of migratory issues. The same non-state status is extended, he says, to a courthouse that is located some 20 kilometres from the nearest Paris airport. As a result, foreign migrants who find themselves inside any of these facilities, or en route to any of these facilities, are barred from making a refugee claim.

After all, they are not in “France.”

“France has basically claimed the right to do whatever they want in those transit zones,” says Mendes.

Possibly even more arcane is the “wet-foot, dry-foot” approach the U.S. government has adopted toward Cubans fleeing their homeland by boat or raft across the Straits of Florida.

Those who are picked up by U.S. Coast Guard vessels while still on the water are deemed to have wet feet and are sent straight back to Cuba, no matter how close they came to making landfall in Florida. In other words, where Cuban migrants are concerned, Washington’s territorial authority does not extend even one centimetre beyond its shores.

By contrast, Cubans collared after reaching U.S. soil are said to have dry feet and are allowed to stay.

Extreme lengths

In a 2010 study of these and similar issues, Danish immigration expert Thomas Gammeltoft-Hansen highlighted the bizarre lengths to which such measures are sometimes taken.

When it comes to the extraterritorial game, probably no country in the world goes farther than Australia.

According to Gammeltoft-Hansen, Canberra has excluded “more than 3,000 islands, certain coastal ports and northern coastal stretches, as well as its territorial waters from its ‘migration zone.’”

The government considers asylum claims made from these areas to be invalid by definition, and the migrants — “offshore entry persons” in antipodean legalese — are promptly deported to compliant third countries.

In Canada, a 1985 Supreme Court ruling held that this country’s Charter of Rights and Freedoms applies even to foreign nationals, and so their asylum claims must be heard, no matter where in the airport they are made.

“If someone claims refugee status, they will be brought before the courts,” says Bellissimo.

Like other experts, however, he worries that this country’s refugee policy is increasingly being modelled on the more restrictive Australian approach.

“In Canada, what constrains us has been the Charter (of Rights and Freedoms), and we’re going to increasingly see that being challenged,” he says. “I hope we don’t go down that (Australian) road.”

That, of course, is not Edward Snowden’s problem. He has other worries.

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